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REZ-20-07 SUB-07-07 CITY OF SPOKANE VALLEY HEARING EXAMINER RE: Rezone from the UR-3.5 Zone to the UR-7* ) Zone, and Preliminary Plat of Ponderosa East; ) FINDINGS OF FACT, File No. REZ-20-07/SUB-07-07 ) CONCLUSIONS OF LAW, Applicant: Whipple Consulting Engineers ) AND DECISION I. SUMMARY OF DECISION Hearing Matter: Consolidated application for a rezone from the UR-3.5 zone to the UR-7* zone, under the expired City Interim Zoning Code; and for a preliminary plat in the UR-7* zone, under the expired City Interim Subdivision Ordinance. Summary of Decision: Approve consolidated application, subject to conditions of approval. The preliminary plat will expire on March 10, 2014, unless a time extension is approved under Section 20.30.060 of the Spokane Valley Municipal Code (SVMC). The underlying zoning of the site will remain R-2, under the SVMC. II. FINDINGS OF FACT Procedural Background 1. The consolidated application proposes a rezone of approximately 5.7 acres of land from the Urban Residential-3.5 (UR-3.5) zone to the Urban Residential-7* (UR-7*)zone, under the expired City Interim Zoning Code; and a preliminary plat to divide such acreage into 18 lots for single-family dwellings, under the expired City Interim Subdivision Ordinance. 2. The site is located directly southeast of Old Schafer Road, and directly southwest of Union Pacific Railroad right of way, in Spokane Valley, Washington. 3. The site is referenced as County Assessor tax parcel nos. 45321.9060 and 45332.9069. t3' P 4. The applicant is Whipple Consulting Engineers, Inc.; addressed at 2528 N. Sullivan Road, Spokane Valley, WA 99216. The site owner is Diamond Rock Construction, Inc.; addressed at c/o Dennis Crapo, 15321 E. Mission Avenue, Spokane Valley, WA 99037. 5. On October 5, 2007, the applicant submitted a complete application for the proposal. The application was reviewed under the City's development regulations and Comprehensive Plan policies in place on such date. 6. On October 10, 2008, the City Community Development Department issued a Determination of Nonsignificance(DNS) for the application. The DNS was not appealed. 7. On January 22, 2009, the Hearing Examiner conducted a consolidated public hearing on the current application, and a related application to alter the final plat of Inverary in File No. SUB- HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 1 O5A-05 submitted on July 28, 2008. Notice of hearing requirements were met for each application. 8. The following persons testified at the public hearing: Karen Kendall, Assistant Planner Micki Harnois, Associate Planner Spokane Valley Planning Division Spokane Valley Planning Division 11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106 Spokane Valley, WA 99206 Spokane Valley, WA 99206 Greg McCormick Inga Note, Traffic Engineer Spokane Valley Planning Division Spokane Valley Public Works 11707 E. Sprague Avenue, Suite 106 11707 E. Sprague Avenue, Suite 106 Spokane Valley, WA 99206 Spokane Valley, WA 99206 Mark Hohman, Senior Engineer Stacy Bjordahl Spokane Valley Public Works Attorney at Law 11707 E. Sprague Avenue, Suite 106 505 W. Riverside, #500 Spokane Valley, WA 99206 Spokane, WA 99201 Todd Whipple Susan Schmidt Whipple Consulting Engineers 3808 S. Sundown Lane 2528 N. Sullivan Road Spokane Valley, WA 99206 Spokane Valley, WA 99206 Richard Behm 3626 S. Ridgeview Drive Spokane Valley, WA 99206 9. The Hearing Examiner heard the application pursuant to former Chapter 10.35 of the Spokane Valley Municipal Code (SVMC), Interim Zoning Code, Interim Subdivision Ordinance, and Hearing Examiner Rules of Procedure. The Examiner conducted a site visit prior to the hearing and after the hearing. 10. The Hearing Examiner takes notice of the SVMC,the City Comprehensive Plan, City interim development regulations in place on October 5, 2007, prior land use decisions in the vicinity, and the Examiner's decision in File No. SUB-05A-05 issued on the same date as the current decision. 11. The record includes the documents in the current application file and the application file in File No. SUB-05A-05 at the time of the public hearing,the documents and testimony submitted at the public hearing, and the items taken notice of by the Hearing Examiner. The Hearing Examiner hereby adopts, and incorporates by reference herein,the Findings of Fact included in the Examiner's decision in File No. SUB-05A-05. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 2 12. The Examiner also includes in the record the Order of Dismissal entered by Judge Kathleen O'Connor in Spokane County Superior Court Cause No. 08-2-00010-3, on January 7, 2009; which upheld the decision of the City Council to affirm the Examiner's decision in File No. REZ-23-04/SUB-15-04/APP-03-07, and was referenced at the current public hearing. Description of Site 13. The site consists of a triangular-shaped parcel of approximately 5.4 acres, improved with a single-family dwelling and detached accessory structure. The site also includes a 65-foot wide strip of land of approximately .3 acres; that extends between the parcel and Old Schafer Road, and is improved with a gravel driveway. 14. The site is relatively flat in topography; except for some moderately steep slopes, not exceeding 30%, located along the northerly fringe of a portion of the site. See preliminary plat rnap. The site generally slopes slightly to the southeast. 15. The site is moderately wooded with mature pine trees, grasses and weeds. Residential landscaping is found around the existing home, and an arborvitae hedge extends along the north and south borders of the access strip. Cyclone and wire fencing are located along the perimeter of the site. See aerial and ground photos of site. Design of Preliminary Plat 16. The preliminary plat map of record submitted on July 8, 2008 illustrates a lot of 34,725 square feet for the existing residence on the site; and 17 additional lots for single-family dwellings,ranging from 7,469 square feet to 14,582 square feet in size. The total lot area is 187,675 square feet(4.3 acres), which yields an average lot size of approximately 10,400 square feet. 17. The dimensions of the site on the preliminary plat map and County Assessor maps, and the area of the site based on County Assessor parcel information, correspond to a plat area of approximately roximatel 5.7 acres. 18. The preliminary plat map erroneously lists a total plat area of 5.08 acres. Further, if the total lot area(4.3 acres) in the preliminary plat is added to the sum of the listed road area(.6 acres) and listed open space tract area(.11 acres), the total plat area would be an erroneous 4.47 acres. 19. The map lists a common open space tract area of.11 acres, which applies to tract located in the north end of the main body of the preliminary plat. The strips of land located on each side of the proposed road in the neck of the site, of approximately .16 acres, should also be considered as common open space. This yields .27 acres of common open space in the preliminary plat. 20. The map lists a road area of approximately .6 acres. However, if the sum of the total lot area and the common open space (4.6 acres) is subtracted from the total plat area(5.7 acres),the actual road area in the preliminary plat would be approximately 1.1 acre. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 3 21. The density(net) of the preliminary plat is approximately 3.9 dwelling units per acre, based on a 5.7-acre plat size and 1.1-acre road area. See definition of"density" in Section 14.300.100 of Interim Zoning Code. 22. The map illustrates an internal private road system that connects to Old Schafer Road; and shows the location of the 100-year floodplain on the site at the time the preliminary plat was submitted. The map indicates that the existing residence and detached accessory structure on the site will remain after final platting. Land Use Designations for Site and Area, Surrounding Conditions 23. The UR-3.5 zoning of the site was first established in 1991, under the County Zoning Code. When the City incorporated in 2003, it adopted the County Zoning Code by reference, as the City Interim Zoning Code; and retained the UR-3.5 zoning of the site. 24. In 2004,the City amended the development standards for the UR-3.5, UR-7, UR-22 and other residential zones in the Interim Zoning Code. 25. In 2005,the Hearing Examiner approved the preliminary plat of Inverary to divide 2.9 acres of land located northwest of the site, across Old Schafer Road, into 30 lots for divided duplexes, at a density(net) of 11.8 dwelling units per acre; and approved a change of condition to a prior rezone of such acreage to the UR-22 zone,to allow such development. See decision in File No. ZE-46A-90/SUB-05-05. 26. In May of 2006, the City implemented the current Comprehensive Plan; which contained new land use categories, policies and text. The City Phase I Development Regulations were also updated to specify the zones in the City Interim Zoning Code that implemented the new land use categories in the Comprehensive Plan, for rezone purposes. The Comprehensive Plan was updated on July 31, 2008. 27. On March 9, 2007, the final plat of Inverary was approved, for 28 divided duplex lots and one (1) single-family dwelling; for a total of 29 dwelling units. See File No. ZE-46A-90/SUB- 05-05. The applicant and the site owner for such project are the same as for the current project. 28. On October 28, 2007,the City fully implemented a Uniform Development Code (UDC) in C. The UDC replaced the City Interim Zoning Code, Interim Titles 17-24 of the SVM p ty g Subdivision Ordinance, Phase I Development Regulations, and other City development regulations in place at the time. The City also adopted new zoning maps throughout the city,to implement the new zones in the UDC. 29. The 2.9 acres of land in the Inverary plat are designated in the Low Density Residential category of the Comprehensive Plan, and zoned Single-family Residential Urban District(R-4) under the UDC. Such land was previously zoned UR-22. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 4 ii 30. The site, and the other neighboring land located southwest of Dishman-Mica Road, are designated in the Low Density Residential category of the Comprehensive Plan, and zoned Single-family Residential Suburban (R-2) under the UDC. See Exhibit #20 and 22. Such land was previously zoned UR-3.5. 31. Neighboring land uses generally consist of single-family homes on lots and parcels of various sizes. The land lying south of the main body of the site is comprised of wooded acreage parcels that are improved with single-family homes or undeveloped. 32. The site and the Inverary plat are bordered on the northeast by a 100-foot wide railway right of way, containing one (1) set of railroad tracks. The railway experiences light usage of a few trains per day. Vacant land, wetlands and Chester Creek are situated between the railway right of way and Dishman-Mica Road. 33. An at-grade railroad crossing of Schafer Road, controlled by cross arms and railroad signalization, is situated approximately 50 feet north of the final plat of Ponderosa Pointe. A neighborhood park is located north of the site; along the east side of University Road, northeast of Dishman-Mica Road. 34. Redeemer Lutheran Church is located northwest of the site; on the west side of Schafer Road, directly across from the Ponderosa Pointe final plat. Ponderosa Elementary School is found a few blocks southwest of the site, at the northeast corner of the intersection of Wilbur Road and Cimmaron Drive. A convenience store is located at the northwest corner of the intersection of University Road and Dishman-Mica Road. Neighborhood Opposition to Proposal 35. Neighboring property owners expressed opposition to the application based on concerns over alteration of the final plat of Inverary to extend a secondary access to Schafer Road,traffic safety and congestion, impacts to pedestrians, inconsistency of proposed housing with neighboring development, wildfire danger, inadequate fire access for the project and the Ponderosa area, drainage, impacts to floodplain and wetlands, impacts to wildlife, inconsistency of proposed housing with other residential development in the area, lack of justification for the proposed rezone, and other concerns. Relevant Policies of Comprehensive Plan 36. The Staff Report sets forth relevant policies of the Comprehensive Plan; prior to its July 31, 2008 update, which update does not apply to the application. This includes policy LUP-1.7, which recommends that zone changes be allowed within the Low Density Residential category of the Comprehensive Plan when specific criteria are met; such as substantial changes within the area of the rezone site,the availability of adequate facilities and public services, and consistency with residential densities in the vicinity of the rezone site. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 5 I 37. Policies LUP-1.1 and NP-2.1 recommend that the character of existing and future residential neighborhoods be maintained and protected through the development and enforcement of the City's land use regulations and joint planning. 38. Policies LUP-1.4 and LUP-2.3 encourage the development of transportation routes and facilities to serve residential neighborhoods; with special attention given to pedestrian circulation, biking and transit uses. Policy TP-9.8 recommends that pedestrian facilities such as sidewalks be required in all new developments. 39. Policy LUP-16.1 encourages new developments to be arranged in a pattern of connecting streets and blocks, to allow people to get around easily by foot, bicycle and car. 40. Policy TP-1.1 states that street design should provide for connectivity between residential neighborhoods and collectors, and discourage cut-through traffic. Policy TP-2.1 recommends that street designs complement adjacent development. 41. Policy TP-2.1 discourages private roads as a principal means of access to developments, and recommends that private roads be designed and constructed to public street standards. 42. Policy LUP-16.3 recommends that adequate emergency evacuation routes be required prior to approving new development. 43. Policy CFP-2.1 states that facilities and services shall meet certain specified minimum levels of service. Policy CFP-2.4 states that if adopted level of service standards cannot be maintained,the City shall increase funding, reduce level of service, or reassess the Land Use Element of the Comprehensive Plan. 44. Policy CFP-4.6 recommends that new development connect to public sewer and water. Policy CFP-8.2 recommends that the review of new residential development consider the adequacy of school facilities. ks 45. Chapter 8 of the Comprehensive Plan contains numerous policies that address the impacts of new development on stormwater, floodplains, geologically hazardous areas, fish and wildlife habitat and wetlands. For the current application,these policies are implemented through the City Interim Critical Areas Ordinance, and the City floodplain and stormwater regulations in place at the time the application was submitted on October 5, 2007. Compliance with Zoning Standards 46. The expired Phase I Development Regulations, which apply to the a pp lication, required all zone reclassifications to be consistent with the implementing zones specified in such regulations for the Comprehensive Plan designations that apply to the subject property. 47. The implementing zones for the Low Density Residential category of the Comprehensive Plan, under the Phase I Development Regulations, are the UR-3.5 and UR-7 zones. Since the site HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 6 is designated in the Low Density Residential category, the proposed rezone of the site to the UR- 7* zone complies with the rezone criteria set forth in the Phase I Development Regulations. 48. The UR-3.5 zone of the Interim Zoning Code, which applied to the site prior to October 28, 2007,was intended to promote areas of primarily single-family residences in an urbanized neighborhood setting. The UR-3.5 zone permitted single-family homes, duplexes and various other uses. 49. The UR-3.5 zone imposed a maximum residential density(net) of 4.35 dwelling units per acre, a minimum lot size of 10,000 square feet for a single-family dwelling, and a minimum lot frontage of 80 feet for a single-family dwelling. 50. The UR-7* zone of the Interim Zoning Code,the proposed zoning for the site, was intended to add to the variety of housing types and densities in urban areas; and to provide standards for the orderly development of residential property in a manner that provides a desirable living environment that is compatible with surrounding land uses, and assures the protection of property values. The UR-7* zone permitted the same uses as the UR-3.5 zone, along with multi-family dwellings and certain other more intensive uses. 51. The Phase I Development Regulations limited new residential development in the Low Density Residential category of the Comprehensive Plan, on land rezoned to the UR-7 under such regulations,to a density(net) of 6.0 dwelling units per acre. Such zoning was referred to as the"UR-7*"zone. The UR-7 zone otherwise permitted a residential density of seven(7) dwelling units per acre. 52. The UR-7 zone required a minimum lot size of 6,000 square feet, and a minimum lot frontage of 65 feet, for a single-family dwelling. 53. The Staff Report found the preliminary plat to be consistent with the development standards of the UR-7* zone; except that it found proposed Lot 13 in the preliminary plat to have a frontage of only 36 feet on a private street, instead of the 65 feet required by the UR-7* zone. 54. Lot 13 actually appears to have 60 feet of frontage in the preliminary plat; through use of the private driveway that the preliminary plat map shows serving Lots 13 and 12, and which connects to the internal private road system. This 8%deviation from the required lot frontage could be allowed through the approval of an administrative exception, under Section 14.506.020(6)(a) of the Interim Zoning Code. Such section allows a deviation of 10%or less than the minimum lot frontage required by the underlying zone. 55. The density(net) of the preliminary plat, at 3.9 dwelling units per acre, not only complies with the UR-7* zone, but also complies with the UR-3.5 zone. The average lot size in the project also exceeds the minimum lot size of 10,000 square feet required in the UR-3.5 zone. 56. The site, and most nearby land, are currently zoned R-2 under the UDC. The minimum lot area per dwelling unit, minimum lot width, and minimum lot depth for a single-family or duplex HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 7 I dwelling in the R-2 district are, respectively, 10,000 square feet, 80 feet and 90 feet. These standards are similar to those in the expired UR-3.5 zone. 57. The Ponderosa Pointe development lying northwest of the site, across Old Schafer Road, is currently zoned R-4 under the UDC. The minimum lot area per dwelling unit, minimum lot width and minimum lot depth in the R-4 district, for both single-family and duplex dwellings, are, respectively, 6,000 square feet, 50 feet and 80 feet. 58. The building setbacks, and the maximum building height, are the same in the UR-3.5 and UR-7 zones of the City Interim Zoning Code, and the R-2 and R-4 districts of the UDC. 59. The project is generally compatible with neighboring residential land uses; considering location of the site along a railroad right of way; the medium density duplex development zoned R-4 to the northwest; and the relatively low density of housing and large average lot size in the project for the UR-7* zone. Transportation Concurrency,Traffic Impacts 60. The City Arterial Road Plan designates Schafer Road as a Collector, Dishman-Mica Road to the northwest as a Principal Arterial, Dishman-Mica Road to the southeast as a Minor Arterial; and University Road as a Minor Arterial. Old Schafer Road, Mercy Drive and other neighboring roads are considered Local Access streets. 61. The intersection of Schafer Road/University Road and Dishman-Mica Road is signalized, and has "protected" left turns. The Schafer Road leg of the intersection has a left turn/shared through-right turn lane. The intersection of Mercy Drive/Mercy Court and Schafer Road is not signalized, but has stop signs on Mercy Drive and Mercy Court that control access to Schafer Road. Seep. 7 of TIA referenced below. 62. The applicant submitted a traffic impact analysis (TIA) for the project; which was prepared by Whipple Consulting Engineers, Inc., a qualified traffic engineering consultant. See TIA for Ponderosa East, revised on 9-12-08. The TIA was accepted by City Engineering 63. The TIA reviewed the level of service (LOS) and traffic safety at the intersection of Dishman-Mica Road/University Road and Schafer Road, and the intersection of Mercy Drive and Schafer Road; as scoped by the City. The TIA also took into consideration the proposed p Y tY• p P alteration of the final plat of Inverary, to provide a secondary fire/emergency access from such plat to Schafer Road. 64. City Engineering certified that the project met transportation concurrency requirements, under the City Phase I Development Regulations. This equates to a determination that the project will not degrade the LOS at key City road intersections impacted by the project in the area during the PM peak hour to a failing level. See Section 1.20 of 2001 County Standards for Road and Sewer Construction, adopted by reference by the City; and hereinafter referenced as the "City Road Standards". HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 8 65. The TIA found no LOS or traffic safety concerns at the study intersections, supports the City's certification of transportation concurrency for the scoped intersections, and was not rebutted by project opponents through the submittal of competent traffic engineering evidence. 66. The final plat of Inverary was required to install additional pavement, curb, gutter and sidewalk along its frontage with Schafer Road. 67. The final plat of Inverary was also required to strip pave Old Schafer Road south to Mercy Drive, to a width of 27 feet; install additional pavement, curb, gutter and a 5-foot sidewalk along its frontage with Old Schafer Road; and install additional asphalt, and a 2-foot gravel shoulder, on the opposite side of Old Schafer Road from the final plat. 68. City Engineering conditions for the current project require the applicant to install similar frontage improvements along Old Schafer Road, although this only involves 65 feet of frontage for the current project. 69. Schafer Road, Old Schafer Road and Mercy Drive in the vicinity lack curb and sidewalk; except for the curb and sidewalk installed for the Inverary plat. 70. Project opponents did not submit competent traffic engineering evidence to support their concerns regarding the safety of pedestrians and students using Schafer Road, Old Schafer Road, and Mercy Drive. The applicant is required to install sidewalk along the frontage of the site with Old Schafer Road, as required by the City Road Standards. Emergency/Fire Access 71. City Engineering and County Fire District 1 submitted conditions for the current project that require the applicant to install a secondary access to Schafer Road in the Inverary plat(to be renamed"Ponderosa Pointe"), through the plat alteration proposed in File No. SUB-05A-05. > 72. The secondary access requirement is based on a total of 56 lots potentially accessing onto Mercy Drive, between Old Schafer Road and Schafer Road. This includes the 18 lots in the current project, 29 lots in the Inverary plat, and nine (9) other existing lots accessing Mercy Drive in the vicinity. See letter dated 6-11-07 from Henry Allen to Karen Kendall. 73. The City Fire Code applicable to the current application states that developments with more than 30 single-family dwellings "... shall be provided with separate and approved fire apparatus access roads, and shall meet the requirements of Section D104.3." See 2003 International Fire Code, Appendix D, Section D107; and letter dated 6-13-07 from Rick Frier of Fire District 1 to Karen Kendall. 74. Section 1.03(8) of the City Road Standards, in pertinent part, requires that a proposed subdivision provide an additional access road into the development to serve fire district vehicles, if the development has the cumulative effect of creating a total number of lots,parcels or tracts HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 9 served by an access road that equals or exceeds 50 lots, in a"setting" where the housing density ranges from 2-11 dwelling units per acre. The location of the additional access road must have the concurrence of the fire district. 75. Section 1.03(8) of the City Road Standards also requires an additional access road to serve fire district vehicles if the local fire district concludes that the location and layout of the development causes a concern for safety, regardless of the other criteria in such section. 76. The approval of the plat alteration would allow the current project to comply with the secondary access requirements set forth in the City Fire Code and the City Road Standards. Impacts and concerns associated with the plat alteration are addressed in the Hearing Examiner's decision in File No. SUB-05A-05, issued at the same time as the current decision. 77. In commenting on the project, County Fire District 1 also referenced Resolution No. 2007- 284, which was adopted on June 4, 2007 by the Board of Fire Commissioners for Fire District 1. Resolution No. 2007-284 recommended to the City and County"...that no further development be allowed in the Ponderosa Neighborhood until a third (3rd)public ingress/egress be constructed". 78. Resolution No. 2007-284 stated that the occurrence of a large firestorm event in the Ponderosa area in 1991 demonstrated that the Ponderosa area is in a wildland interface area that is susceptible to major fire events, the Ponderosa area continues to develop residential subdivisions which generate more vehicle traffic with only two (2)public ingress and egress roads, each additional development in the Ponderosa area has cumulative effects on ingress and egress, access by fire apparatus would be hindered while resident vehicles congest the roadways trying to evacuate from another fire like the 1991 firestorm, and a third(3rd)public ingress and egress would help alleviate emergency congestion in the event of disaster. 79. Other than citing the resolution, and the need for the secondary access through the Ponderosa Pointe plat to Schafer Road, Fire District 1 expressed no specific concerns regarding fire access for the current project. See letters dated 7-28-08 and 11-27-07 from Rick Freir of Fire District 1 to Micki Harnois, email dated 7-8-08 from Kevin Miller of Fire District 1 to Sandra Raskell, et. al., and email dated 11-28-07 from Rick Freir to Micki Harnois. 80. On October 16, 1991, a significant wildfire/firestorm event occurred in various parts of Spokane County; including a 3-mile long by 1-mile wide area located in the south Ponderosa area. 81. The 1991 firestorm resulted in the destruction of 14 homes along Ferret Drive, located approximately one (1)mile south of the site. The fire threatened the destruction of 105 additional homes in the south end of the Ponderosa area and the nearby Painted Hills area, with the fire reaching as far north as 48th Avenue. 82. The 1991 firestorm occurred during the afternoon, on a weekday when many residents were still at work; and was caused by a downed power line on Brown's Mountain. The fire grew to HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 10 1,587 acres in only four(4) hours, and forced the evacuation of over 2,500 residents in the Ponderosa area. Residents received word to leave their homes 1.5 hours after the fire started, and 30 minutes later flames raced up a slope to reach the first homes that were damaged by fire. 83. The Ponderosa fire raced so quickly that fire and police officials could not organize an evacuation through the two (2) signalized intersections located along Dishman-Mica Road, the only exits out of the Ponderosa area for general vehicular traffic. See e.g., FF #77-79 in HE Decision in File No. SUB-07-04/PUD-04-04/APP-04-07, referenced below. 84. On August 5, 2005, the County Hearing Examiner(same as current Examiner) approved the preliminary plat of Ponderosa Ridge; to subdivide 28 acres of land located over one(1)mile southeast of the site, at the southeast corner of the intersection of 44th Avenue and Schafer Branch Road, into 100 lots for single-family dwellings; in the UR-3.5 zone of the County Zoning Code. See decision in File No. PE-1940-04. 85. The Examiner's Ponderosa Ridge decision was affirmed on appeal by Spokane County Superior Court. On November 13, 2007, the Washington State Court of Appeals affirmed the Superior Court, in an unpublished opinion. See exhibit"A"attached to Exhibit#24, and 141 Wn. App. 1031 (2007). 86. The Ponderosa Ridge decision, which primarily involved County Fire District 8, found that fire access for the project was adequate; based largely on the fire evacuation analysis included in a traffic impact analysis (TIA)prepared for such project by Whipple Consulting Engineers, Inc. ("WCE"), expert testimony provided by the sponsor's fire safety consultant(Claude Wells), and favorable review of the evacuation analysis by Spokane County Engineering. 87. On June 4, 2007, the Fire District Board of Commissioners adopted Resolution No. 2007- 284. On the same day, County Sheriff Ozzie Knezovich addressed a letter to the City Council, expressing support for Resolution No. 2007-284. 88. On August 13, 2007, Chief Mike Thompson of Fire District 1 addressed a letter to the Hearing Examiner; which advised that Resolution No. 2007-284 was intended to apply to the preliminary plat of Ponderosa Estates North, as well as other developments proposed in the Ponderosa area. On August 14, 2007, Sheriff Ozzie Knezovich sent an email to the Examiner expressing support for Chief Thompson's letter. 89. On August 30, 2007, the Hearing Examiner denied a consolidated application to rezone 15 acres of land located one-half(1/2)mile northwest of the site, at the northerly termini of Ridgeview Drive and Woodruff Road, from the UR-3.5 zone to the UR-7* zone; and for the preliminary plat of Ponderosa Estates North, which proposed the creation of 45 lots for single- family dwellings on such acreage in the UR-7* zone. See decision in File No. REZ-23-04/SUB- 15-04/APP-03-07. ' 90. The Examiner denied the Ponderosa Estates North project on the basis that wildfire access for such project was inadequate. This conclusion was based primarily on the following factors: is HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 11 a. the Examiner's findings that the Ponderosa area could not be safely evacuated in an approximately 30-minute period in the event of a wildfire, even with the use of emergency personnel (contrary to contentions in the fire evacuation analysis prepared by WCE); based on a review of the background data contained in the fire evacuation analysis that had not previously been made available to the Examiner; b. the testimony of Assistant Chief Larry Rider of Fire District 1, expressing concern regarding the cumulative impacts of development in the Ponderosa area, without the provision of a third access out of the area in the event of a wildfire; together ether with the dead- end character of the internal roads in the Ponderosa Estates North project, which was located at the"urban wildfire interface"; c. the findings and recommendations contained in Fire District 1 Resolution No. 2007- 284; and d. the letter from Sheriff Knezovich to the City Council dated June 4, 2007, expressing support for the fire district resolution. 91. On November 30, 2007, the Hearing Examiner approved an environmental appeal, and ordered issuance of a Determination of Significance (DS), for the preliminary plat of Ponderosa PUD. Such project proposed to subdivide 17 acres of land located directly east of the Ponderosa Ridge project, along the south side of 44th Avenue, into 81 lots for single-family dwellings; in the UR-7* zone of the City Interim Zoning Code. See decision, and denial of request for reconsideration, in File No. SUB-07-04/PUD-04-04/APP-04-07. 92. The Examiner's Ponderosa PUD decision was based on the same fire evacuation factors taken into consideration for the Ponderosa Estates North decision; except that the Examiner also 1 gave substantial weight to the expert testimony of Thomas Cova, an authority on wildfire evacuations called by project opponents at the Ponderosa PUD hearing. Fire District 1 did not testify at the hearing; but the Examiner took into consideration the August 2007 correspondence from Fire Chief Thompson and Sheriff Knezovich regarding Resolution No. 2007-284. 93. Thomas Cova emphasized the need to evacuate a community located in a high wildfire hazard area, like the Ponderosa area, within an approximately 30-minute time frame; found that it would take up to two (2) hours to evacuate the Ponderosa area(depending on the location of ignition points), including up to 40 minutes for residents to be notified and prepare to leave their homes; and concluded that an additional public access route out of the Ponderosa area was needed to safely evacuate residents in the event of a wildfire. See, e.g. FF #394-413 in File No. SUB-07-04/PUD-04-04/APP-04-07. 94. The Examiner's Ponderosa PUD decision was upheld by the City Council. The City Council's decision was upheld by Spokane County Superior Court on January 7, 2008. See Order of Dismissal added to record by Examiner. However,the Examiner's decision on the Ponderosa Estate North project was recently reversed by Spokane County Superior Court; by a different judge, who also approved the project. See exhibit"B"attached to Exhibit#24. Both matters are currently on appeal to the Washington State Court of Appeals. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 12 95. The applicant, in its Memorandum in Support of Application submitted at the current hearing, contended that the Hearing Examiner erred in the Ponderosa PUD decision; by concluding that access out of the Ponderosa area in the event of a wildfire was inadequate, based on the finding that the area could not be evacuated in a 30-minute time frame. 96. In support of the above contention, the applicant's memorandum cited the Court of Appeals unpublished opinion upholding the Examiner's Ponderosa Ridge decision, the Superior Court's "letter decision"reversing the Examiner's decision on the adjacent Ponderosa PUD project, the minutes from a July 18, 2007 meeting of Fire District 8 on the fire evacuation analysis, and the existence of a third(3rd) "emergency access"out of the Ponderosa area. See Exhibit 24,p. 6-7, and attachments thereto. 97. The applicant's memorandum failed to mention the Superior Court's decision on the Ponderosa Estates North project, which upheld the Examiner's decision based on the virtually the same findings and conclusions regarding the fire evacuation issue contained in the Examiner's decision on the Ponderosa PUD decision. 98. Fire District 8 indicated at its July 18, 2007 meeting that the 30-minute time frame for evacuating the Ponderosa area, used in the fire evacuation analysis prepared by WCE in 2005, came from Fire District 8; was based on the time it took for the fire in the 1991 firestorm event "...to move from point A to point B..."; and that the fire district simply asked Whipple Consulting Engineers how much traffic could be moved in 30 minutes,without directing that the evacuation had to be completed in 30 minutes. 99. Fire District 8 actually asked WCE, in 2004, that the fire evacuation analysis cover the need for an evacuation of the entire Ponderosa area in the event of another firestorm, including the capability of the road system exiting the Ponderosa area to handle 5,000 to 6,000 vehicles in a set period of time. 100. The fire evacuation analysis was refined by WCE and Fire District 8 in 2005 to require the study of only two (2)vehicles per housing unit leaving the Ponderosa area in a 30-minute time period; assuming there were approximately 1,281 existing homes in the Ponderosa area. See FF #139-141 in HE Decision in File No. PE-1940-04, FF#201 and 239 in HE Decision in File No. REZ-23-04/SUB-15-04/APP-03-07, and FF#222-225, 297, 298 and 328 in HE Decision in File No. SUB-07-04/PUD-04-04/APP-04-07. 101. The fire evacuation analysis prepared by WCE specifically found that the Ponderosa area could be evacuated in a 30-minute time frame in the event of a wildfire, subject to emergency personnel controlling the signals at the two main intersections located along Dishman-Mica Road. See FF#241 in HE Decision in File No. REZ-23-04/SUB-15-04/APP-03-07, FF#356 in HE Decision in File No. SUB-07-04/PUD-04-04/APP-04-07; and FF#143 in HE Decision in File No. PE-1940-04. 102. In 2005, Chief Walkup of Fire District 8 responded in writing to concerns raised by an area resident, regarding the fire evacuation analysis. Walkup advised in a letter that the district did HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 13 not have a copy of any detailed analysis or maps of the evacuation model, other than that contained in the TIA; did not have written adopted evacuation plans for specific neighborhoods; the responsibility for evacuation rested primarily with law enforcement agencies; fire district personnel were not qualified to participate in an evacuation analysis; WCE should have been directed to work with law enforcement agencies in developing an evacuation analysis for the Ponderosa; and the district routinely relied on the expertise of other government agencies relative to traffic flow, movement and level of service. 103. Chief Walkup's letter also advised that Fire Districts 9 and 1 had learned a number of valuable lessons from the 1991 firestorm; and that such agencies did not envision evacuating the entire area in the event of another firestorm event, but rather having citizens shelter in place or move to an area of refuge in the event of wildfire. The letter did not provide any details regarding such alternative strategies. 104. Chief Walkup made similar comments to those in his letter at the July 18, 2007 meeting held by Fire District 8. Fire District 8 conceded at the meeting that its staff did not believe that all residents in the Ponderosa neighborhood could be notified to evacuate, or be evacuated, in a 30-minute time frame. 105. Fire District 8 advised at its July 18, 2007 meeting that it was working on a county-wide evacuation plan with the County Sheriff, and that several changes had been made since the 1991 firestorm. This included improved coordination and communication between emergency agencies, the availability of more equipment and advanced equipment, a larger firefighting force, and the installation of a new access for emergency vehicles in the Ponderosa. See Exhibit#24. 106. During the summer of 2008, a large wildfire ("Valley View"fire)burned through the forested land lying directly north and northeast of the Ponderosa area, directly north of the Ponderosa Estates North project site. This compelled the County Sheriff to order an evacuation of the Ponderosa area, through the two signalized intersections along Dishman-Mica Road. The Ponderosa area was not used to "shelter in place"during the fire, even though the fire did not burn into the Ponderosa area like the 1991 firestorm. 107. County Fire District 1, also referenced as the "Spokane Valley Fire Department", generally covers the area of the City lying north of 44th Avenue. County Fire District 8 generally covers the area of the City and county lying south of 44th Avenue. A fire station operated by Fire District 8 is located approximately three-fourth(3/4)miles southeast of the site, at the southwest corner of the intersection of 44th Avenue and Bates Road. 108. In 2002, a 12-foot wide,paved road was extended across the railroad line in the area, at grade, from Sands Road to Dishman-Mica Road, between 47th Avenue and 48th Avenue. The primary purpose of the crossing is to provide emergency access for fire district vehicles. Such crossing is gated and locked at both ends, and is signed as a restricted railroad crossing. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 14 109. County g a and regards gates District 8 has keys to the locked gates at such railroad crossing; d ards `.1 such crossing as an emergency ingress point for second response units, coming from a fire station located several miles southeast of the Ponderosa area. 110. The above referenced access could possibly be used for limited emergency evacuation of the Ponderosa area, should other access routes out of the Ponderosa area become blocked or congested. At the time the access was installed, Fire District 8 considered the access as a temporary alternative to the construction of a new public access road to serve the Ponderosa area. See Findings of Fact#95-96 in HE Decision in File No. SUB-07-04/PUD-04-04/APP-04-07; and Exhibit#26. 111. The emergency access is not the third (3rd) or additional public access for vehicular traffic requested by Fire District 1 in its Resolution No. 2007-284; and is inadequate to serve as such access due to its remote location, limited width and lack of railroad crossing controls. 112. The Superior Court's letter decision reversing the Examiner's decision for the Ponderosa PUD project concluded that the record did not support the Examiner's finding that the Ponderosa area could not be evacuated in 30 minutes with emergency personnel assistance. However, the Court did not provide any specific analysis for this conclusion, or indicate any deference given to the findings of fact entered by the Examiner on such issue. 113. The Court's letter decision also found that the Examiner erred as a matter of law in using SEPA review at the project level to impose a"regional"requirement that the Ponderosa area be evacuated in 30 minutes, find that the project created inadequate fire access, and require an additional access road into the Ponderosa area. See Exhibit#24. 114. A review of the Examiner's decision on the Ponderosa PUD project indicates that in making such determinations, and in finding that emergency access was inadequate for such project, the Examiner relied for legal authority on the need to make appropriate provisions for roads and public safety in new subdivisions under RCW 58.17.110, specific policies in the City Interim Comprehensive Plan that emphasized the need to provide adequate fire access for residents and fire district vehicles in new residential developments,the Examiner's substantive authority under SEPA to apply the policies of the City Interim Comprehensive Plan and other adopted SEPA policies of the City to new development, and the provisions in RCW 36.70B.030 authorizing reliance on comprehensive plan policies to review new development in the absence of a specific City regulation. See HE Decision in File No. SUB-07-04/PUD-04-04/APP-04-07. 115. Project opponents in the current matter expressed concern that wildfires had previously occurred in the Ponderosa area sparked by passing trains, the forested wetlands located along the southwest side of Dishman-Mica Road had caught fire in the past, the site was located adjacent to the railroad and the wetlands, and evacuation of the site through the narrow neck of the site could be cut off in the event of a wildfire. However, such concern regarding evacuation of the Gx site was not supported by competent evidence from a fire expert, Fire District 1 or City Engineering. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 15 116. Evacuation of the current project, and the Ponderosa Pointe project, in the event of wildfire is not analogous to the fire evacuation scenarios associated with the Ponderosa Estates North, Ponderosa PUD or Ponderosa Ridge projects. The current project and the Ponderosa Pointe projects are situated only a few blocks from the intersection of Dishman-Mica and Schafer Road; while the other projects are all located a mile or more driving distance from the nearest public road intersection along Dishman-Mica Road, along a circuitous road network, and near a steep and forested hillside. 117. The Ponderosa Ridge preliminary plat is no longer subject to appeal, and a final plat can be issued for the project by Spokane County. At the current time, it cannot be assumed that the Ponderosa PUD and Ponderosa Estates North projects will be developed; considering that both decisions are currently on appeal. The current project will add only an additional 18 dwelling units to be evacuated from the Ponderosa area in the event of a wildfire, which units can be quickly evacuated from the Ponderosa area. 118. The project will not have a significant impact on the ability to evacuate the Ponderosa area in the event of a wildfire; and, as conditioned, can be safely evacuated in the event of a wildfire. Compliance with Critical Areas Ordinance,Floodplain Ordinance 119. City Critical Areas maps illustrate a DNR Type 4 stream (Chester Creek) extending southeasterly along the northeast boundary of the southeast corner of the main body of the site. 120. The application and the SEPA checklist submitted for the project state that the site abuts Chester Creek, a seasonal stream. However, the preliminary plat map does not show the location of the stream, or the portion of the 75-foot riparian buffer required by the CAO for such stream on the site. The Staff Report does not mention the stream. 121. At the public hearing, the applicant submitted a copy of the preliminary plat map showing the centerline of the DNR Type 4 stream located near the site, and the 75-foot riparian buffer cutting southeasterly through the middle to east portions of Lots 12 and 13 of the preliminary plat. 122. The applicant indicated at the public hearing that it may have to reconfigure Lots 12 and 13 in the final plat to deal with the stream buffer,but there are adequate building sites on each lot located outside the riparian buffer to develop homes. See testimony of Todd Whipple. 123. A condition of approval should be added to require the stream and riparian buffer to be shown on the final plat, and to require compliance with the regulations of the CAO for riparian buffers. Such regulations generally require that the stream and stream buffer be retained in its natural state. See Section 11.20.060.0 of CAO. 124. The Staff Report erroneously indicates that the site is located in wetland buffer area, and recommends conditions of approval to protect such buffer. This occurred as a result of the Community Development Department misconstruing the SEPA checklist to state that the site is HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 16 adjacent to Chester Creek, "a Category 4 wetland". See environmental checklist review sheet, and testimony of Micki Harnois. 125. The site is situated approximately 350 feet west of the wetland associated with Chester Creek, between the railroad and Dishman-Mica Road; as designated on City Critical Areas maps. Also see critical areas illustrated on Exhibit#20; and testimony of Micki Harnois, Greg McCormick and Todd Whipple. 126. The maximum buffer that can be applied to any wetland under the City Interim Critical Areas Ordinance (CAO) is 200 feet. Under these circumstances, a wetland report would not be required for the project, and the conditions of approval recommended by the City Community Development for the wetland should be deleted. See Section 11.20.050.A and C. 127. City Critical Areas maps do not designate any priority wildlife habitat on the site, and the record does not contain competent evidence from a wildlife biologist indicating that any priority wildlife habitat exists on the site. Accordingly, the Department was not required to contact the Washington State Department of Fish and Wildlife regarding the project, or require the applicant to submit a habitat management plan for the project. See Section 11.20.060.D of CAO. 128. City Critical Areas maps designate an alluvium geo-hazard on much of the site, and adjacent undeveloped land located along the DNR Type 4 stream coursing through the area. The applicant submitted a geo-hazard evaluation report,prepared by a qualified engineering consultant, which confirmed the presence of alluvial soils on the property. 129. The geo-hazard evaluation found no signs of significant, large-scale erosion of the exposed alluvial soils on the property, and no evidence of landslides on or near the site. The evaluation concluded that construction of residential structures was feasible for all lots in the project, subject to specified mitigating measures that address the potential for erosion during the disturbance of soils from construction activities. See Exhibit#27, letter dated 6-25-07 from ALLWEST Testing&Engineering, LLC. 130. The geo-hazard evaluation adequately documents the extent and nature of the geo-hazard on the site, assesses the geo-hazards associated with site development, and provides mitigating measures for such geo-hazards; as required by the CAO. The final plat dedication should be required to indicate the lots in the project affected by geo-hazards, and require compliance with the mitigating measures recommended by the geo-hazard evaluation. See Section 11.20.070.D.2 of CAO. 131. The preliminary plat map illustrates the location of a 100-year floodplain on all of Lots 12 and 13, and portions of Lots 11 and 12. A revised floodplain analysis was completed for the area on September 20, 2008. The site may be located outside the revised floodplain. See testimony of Greg McCormick and Todd Whipple. 111 132. The applicant's engineer testified at the public hearing that some lots may not have basements, to deal with drainage or floodplain conditions affecting certain lots. See testimony of HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 17 Todd Whipple. The SEPA checklist submitted for the project contains details regarding the management of stormwater. 133. City Engineering conditions require the issuance of a floodplain development permit for any development proposed in a 100-year floodplain. This ensures compliance with the City's floodplain regulations, if the site is determined to be in the floodplain at the time of final plat approval. 134. The City Engineering conditions of approval require the final plat of the project to comply with City and State requirements for drainage and temporary erosion control, including the submittal of drainage plans and calculations. This will provide for the treatment of stormwater generated by the project, and the protection of the improvements on the site and adjoining properties from adverse drainage impacts. Public Sewer and Water Concurrency 135. County Division of Utilities, and Spokane County Water District#3, respectively certified the availability of public sewer and water for the proposal. County Utilities and Spokane Regional Health District conditions of approval require the final plat to connect to public sewer and water. The proposal complies with the public sewer and water concurrency requirements of the City Phase I Development Regulations. Impacts to School and Parks 136. Central Valley School District#356 submitted a letter dated October 14, 2008; in which it advised that it did not see any issues between the project and the district's current facilities, although it could not ensure that students in the project would attend the nearest school. The district also advised that the potential exists to transport students to schools in various areas of the district; based on current enrollment growth rates, and the availability of facilities and student enrollment"at that point in time". 137. The school district further stated in its letter that it could not, at the present time, guarantee room for students from the proposed homes in the project. The district requested that, based on the added enrollment that would be generated by the project, the City either postpone approval of the project in accordance with the provisions of RCW 58.17.110,the State Growth Management Act(GMA), and the County and City comprehensive plans, pending the availability of additional school facilities; or condition approval of the project on the developer paying the City a per dwelling unit fee "...equal to the district's eligibility for school impact fees." 138. The Comprehensive Plan does not adopt levels of service for public schools, and allows each school district to adopt its own levels of service. 139. The July 31, 2008 update to the Comprehensive Plan provides current information regarding enrollment issues involving Central Valley School District, although any new or revised policies in the update cannot be applied to the project. The update advises that the most urgent need for the district is to add more elementary classroom space in the east end of the HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 18 1 I o district, the district will need to construct a new high school and middle school over the next 20 years, a number of elementary schools need to be completely remodeled, the district has a middle school site adjacent to Liberty Lake Elementary School, the district recently acquired two (2) elementary school sites in the north.Greenacres area, and the district is in the process of developing a capital improvement and financing plan under the GMA. See p. 30-32 of updated Comprehensive Plan. 140. The school district did not appeal the DNS issued for the project. Further, the district did not provide an adequate factual basis to support a finding that the district will have insufficient capacity to accommodate the students in the project at the time of build out, or to support a L school mitigation fee imposed through a voluntary agreement under the authority of RCW 58.17.110 and RCW 82.02.030. 141. The City Phase I Development Regulations do not require direct concurrency for schools or parks. The City has not established a mechanism to collect school impact fees through a voluntary agreement under RCW 82.02.030, or a GMA impact fee under RCW 82.02.050. Under these circumstances, the Examiner lacks authority to condition or deny the proposal based on insufficient school capacity. 142. The City Parks and Recreation Department did not comment on the project. The Comprehensive Plan, and the 2008 update to the Comprehensive Plan, both indicate that the City I currently has adequate park capacity to meet the level of service adopted in the Comprehensive Plan, and the City plans to acquire additional parkland over the next several years to avoid a future deficiency. Consistency with Comprehensive Plan,and Development Regulations 143. The Staff Report found the preliminary plat and rezone, as conditioned,to be consistent with the Comprehensive Plan and applicable development regulations. The Examiner concurs with such analysis, as supplemented herein. 144. The site is appropriate for a rezone to the UR-7* zone; considering that the UR-7* zone specifically implements the Low Density Residential category of the Comprehensive Plan under the City Phase I Development Regulations, the site is situated one (1)block from a Collector Arterial and within a few blocks of a 5-lane Principal Arterial,the site is located in a developed residential area near a church and elementary school,the site is located across a public street from a medium-density duplex project on land zoned R-4 under the UDC, and the high level of public services available to the site. 145. The proposal has been conditioned for compliance with the UR-7* zone,the City Interim Zoning Code, the City Interim Subdivision Ordinance, and other applicable development regulations. No deficiencies with regard to the compliance of the proposal, as conditioned, with applicable development regulations have been established in the record. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 19 } Compliance with Design Criteria in Interim Subdivision Ordinance 146. The design, shape, size and orientation of lots in the preliminary plat are appropriate for the proposed use of such lots, and the character of the area in which the lots are located; as required by the City Interim Subdivision Ordinance. 147. Block dimensions in the preliminary plat reflect due regard for the needs of convenient access,public safety, emergency vehicle access, topography, road maintenance and provision of suitable sites for the proposed use; as required by the City Interim Subdivision Ordinance. 148. The road alignments in the proposal are designed with appropriate consideration for existing and planned roads, anticipated traffic patterns, topographic and drainage conditions, safety and the proposed use of the site; as required by the City Interim Subdivision Ordinance. Changed Conditions Supporting a Rezone of the Site 149. Significant changes in support of the proposed rezone have occurred in the area since the zoning of the site was reclassified to the UR-3.5 zone by the County in 1991, and continued by the City when it incorporated in 2003. This includes the extension of public sewer to the area, designation of the site and neighboring land in the Low Density Residential category of the Comprehensive Plan, adoption of the City Phase I Development Regulations and Comprehensive Plan, inclusion of the site and neighboring land in the City of Spokane Valley, the approval of the change of condition and preliminary plat in File No. ZE-46A-90/SUB-05-05, and final approval of the Inverary plat. Based on the above findings of fact,the Hearing Examiner enters the following: III. CONCLUSIONS OF LAW 1. The Hearing Examiner hereby adopts, and incorporates by reference herein, the fi Conclusions of Law adopted in the Examiner's decision in File No. SUB-05A-05. 2. Pursuant to Section 13.300.110 of the City Application Review Procedures for Project Permits, and RCW 58.17.033,the current application is subject to review under the City comprehensive plan policies, zoning and other development regulations in place at the time the current application was submitted as complete on October 5, 2007. 3. Under Washington case law,where there is a conflict between the policies of a comprehensive plan, and the zoning code or other development regulations adopted by the local government, the zoning code and development regulations are controlling over the policies of a comprehensive plan. 4. Under Washington case law, community displeasure, standing alone, cannot form the basis for denying a land use application. Such views must relate to the approval criteria established for N the application, and be supported by competent evidence. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 20 5. The proposed rezone to the UR-7* zone complies with the rezone criteria set forth in the City Phase I Development Regulations. 6. The proposed rezone is consistent with the Comprehensive Plan, is not detrimental to the public welfare, and satisfies the site-specific rezone criteria set forth in Section 14.402.020(1)of the City Interim Zoning Code. See references to Section 14.402.020(1), in Sections 14.402.020 and 14.402.160 of Interim Zoning Code. 7. Washington case law requires the proponent of a rezone to establish, by a preponderance of the evidence,that the proposed rezone bears a substantial relationship to the public health, safety or general welfare; and that a substantial change of circumstances has occurred in the area. However,proof of a substantial change of circumstances is not required if the rezone implements the comprehensive plan of the local government. 8. The proposed rezone to the UR-7* zone implements the Comprehensive Plan; and bears a substantial relationship to the public health, safety or welfare. 9. A substantial change of circumstances has occurred in the area since the site was last zoned. 10. RCW 36.70B.030 requires that a comprehensive plan and development regulations adopted by local government under the State Growth Management Act(GMA) serve as the foundation for project review; and that where standards for development are specified in local development regulations, or in the absence of applicable development regulations, are addressed in a comprehensive plan, such regulations, or the comprehensive plan, respectively, are determinative of the standards of development for the land use action. 11. Since the proposed rezone to the UR-7* zone meets the rezone criteria established in Section 14.402.020(1) and Washington case law, the Hearing Examiner cannot question the density(net), lot sizes, lot frontages, lot configuration, or proposed land uses in the preliminary plat; since such features of the preliminary plat, as conditioned, comply with the development standards of the UR-7* zone. See RCW 36.70B.030. 12. The proposed preliminary plat, as conditioned, complies with the City Interim Zoning Code City Interim Subdivision Ordinance, and other applicable development regulations; makes appropriate provision for the public health, safety and general welfare; serves the public use and interest; and make appropriate provision for open spaces, drainage ways, streets or roads, other public ways,potable water supplies, transit stops, sanitary wastes, parks and recreation, playgrounds, schools and school grounds, critical areas, fire/emergency access, sidewalks for children who reach school by walking, critical areas, and other relevant facts and planning features. 13. The preliminary plat, as conditioned, complies with RCW 58.17.110 and the City Interim Subdivision Ordinance. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 21 14. Certain conditions recommended by the City Planning Division and the City Engineering Division should be modified for the reasons stated in the above Findings of Fact, or for clarity. 15. The procedural requirements of the State Environmental Policy Act, and the City Environmental Ordinance, have been met. The proposal, as conditioned, will not have a probable, significant, adverse impact on the environment. 16. The underlying zoning of the site should remain in the R-2 district, subject to the preliminary plat being finalized and developed under the UR-7* zone and other relevant provisions of the City Interim Zoning Code. 17. Approval of the zone reclassification and preliminary plat are appropriate under former Section 10.35.110 of the Spokane Valley Municipal Code (SVMC), which was in effect at the time the application was submitted on October 5, 2007. IV. DECISION Based on the Findings of Fact and Conclusions of Law above, the consolidated application for a preliminary plat and zone reclassification in the above file is hereby approved, subject to the conditions of the various agencies specified below. Any conditions of approval of public agencies that have been added or significantly altered by the Examiner are italicized. This approval does not waive the applicant's obligation to comply with all other requirements of other public agencies with jurisdiction over land development. Conditions of Approval: A. General Conditions: SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT—PLANNING DIVISION: 1. Future development of the site under the Urban Residential-7* (UR-7*) zone of the Spokane Valley Interim Zoning Code is limited to the development disclosed in the preliminary plat application. A maximum of eighteen (18) residential lots and eighteen (18) single-family dwelling units are allowed to be developed on the site, in the final plat. 2. All other site development shall comply with the Single-family Residential Suburban District (R-2) and other applicable provisions of the Spokane Valley Municipal Code. The underlying zoning of the site shall remain R-2. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 22 3. Pursuant to Section 12.100.116 (Expiration of Approval) of the Spokane Valley Interim Subdivision Ordinance ("Subdivision Ordinance"), the preliminary plat approval in File No. SUB-07-07 shall automatically expire on March 10, 2014, unless a time extension is approved for the project. If a request for an extension of time is not timely submitted and approved, the preliminary approval expires and the plat is null and void. 4. Pursuant to Section 12.100.118 (Extensions of Time) the Subdivision Ordinance, an application form and supporting data for time extension requests must be submitted to the Director at least thirty(30) calendar days prior to the expiration of the preliminary plat approval. 5. Pursuant to Section 12.100.130 (Enforcement) of the Subdivision Ordinance, any sale, lease, or transfer of any lot or parcel created pursuant to the City's Interim Subdivision Ordinance that does not conform to the requirements of the preliminary plat approval or that occurs without approval, shall be considered a violation of Chapter 58.17 RCW, and shall be restrained by injunctive action and shall be illegal, as provided in Chapter 58.17 RCW. Each sale, lease, or transfer of each separate lot or parcel of land in violation of any provision of this ordinance shall be deemed a separate and distinct offense. 6. Pursuant to Section 12.400.132 (Utilities) of the Subdivision Ordinance, when the density of a proposed subdivision meets or exceeds three (3) lots per gross acre within its exterior boundaries, the subdivision shall provide underground utilities within public rights-of-way, alleys or utility easements; including, but not limited to, those for electricity, communications, and street lighting. Since the gross density of the preliminary plat is 3.15 lots (units)per acre,the final plat shall comply with Section 12.400.132. If the applicant or successors in interest want the Director to waive the undergrounding requirement, a written request shall be submitted to the Community Development Director requesting a waiver of the underground requirement and providing a detailed explanation of the conditions, physical or otherwise, that make underground installation impractical. B. Prior to final plat approval,the applicant or successors in interest shall: SPOKANE VALLEY COMMUNITY DEVELOPMENT DEPARTMENT—PLANNING DIVISION: 1. Submit a proposed final plat that complies with all submittal requirements specified in Chapter 12.400 of the Subdivision Ordinance. 2. Pursuant to Section 12.400.134 (Professional Land Surveyor) of the Subdivision Ordinance, the submitted final plat shall be made by or under the supervision of a professional land surveyor, who shall certify on the final plat that it is a true and correct representation of the lands actually surveyed. All surveys shall comply with the Survey Recording Act (RCW Chapter 58.09), Survey and Land Descriptions (WAC-332-130), and the City of Spokane Valley's Interim Standards for Road and Sewer Construction, as amended. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 23 3. Pursuant to Section 12.400.144 (Filing) of the Subdivision Ordinance, the City shall record the final plat with the Spokane County Auditor's Office, upon receipt of all required signatures on the face of the plat. The applicant shall also submit, prior to recording, all required recording fees; including appropriate fees to pay for the cost of three (3) copies of the recorded final plat for distribution to the City of Spokane Valley Planning, Development Engineering and Building Divisions. 4. The final plat dedication shall state: "All lots within this plat shall comply with the building setback requirements, maximum building height standard, maximum lot coverage standard and other applicable lot development standards for the UR-7* zone." Note: Lot 13 of the preliminary plat does not meet lot frontage requirements. 5. The final plat shall delineate the boundary of the area of special flood hazard(100-year floodplain) on the site. Any construction and/or development conducted within the special flood hazard area must be approved through applying for and obtaining a development permit pursuant to City Floodplain Ordinance No. 04-004. This requirement shall be stated in the dedication language as well as on a prepared title notice. 6. The final plat shall illustrate the location of the riparian stream buffer for Chester Creek on the site, which seasonal stream is currently designated as a DNR Type stream with a 75 foot riparian buffer by the City Interim Critical Areas Ordinance. The final plat shall comply with the riparian habitat performance standards set forth in Section 11.20.0600.2 of the City Interim Critical Areas Ordinance. 7. The final plat dedication shall reference the location of the riparian stream buffer on the site; and shall require that the riparian buffer be retained in its natural condition without the removal of riparian vegetation, except as authorized by the City's Critical Areas regulations. 8. Best management practices shall be used to prevent erosion and/or sediment associated with site disturbance through grading and/or earth movement within the riparian buffer. 9. The site contains an alluvium geo-hazard. As required by Section 11.20.070.D of the City Interim Critical Areas Ordinance, the final plat dedication shall indicate the lots or portions of lots affected by the alluvium geo-hazard designated on the site. The final plat shall comply with the mitigating measures specified in the geo-hazard evaluation report prepared by ALLWEST Testing&Engineering, LLC and dated June 25, 2007. SPOKANE VALLEY PUBLIC WORKS DEPARTMENT—DEVELOPMENT ENGINEERING DIVISION: 10. A Professional Engineer, licensed in the State of Washington, shall prepare required engineering documents (including civil/street plans, drainage plans, drainage calculations,traffic studies, shared access driveway plans, etc.). Plans shall conform to the 2001 Edition of the Spokane County Standards for Road and Sewer Construction(as adopted by the City), the 1998 Spokane County Guidelines for Stormwater Management(as adopted by the City), Spokane HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 24 Valley Stormwater Ordinance 05-013, and all other applicable federal, state and local regulations. 11. Frontage improvements are required on Old Schafer Road, as follows: a. Old Schafer Road is designated as a Local Access street. Frontage improvements include fifteen (15) feet of asphalt width from road centerline, Type B curb and gutter (2 feet), ten(10)-foot roadside swale, and a five (5)-foot sidewalk. The total width of improvements is thirty-two (32) feet. The current right-of-way is sixty(60) feet; one- half(1/2) of the right-of-way being thirty(30) feet. The minimum one-half(1/2)right- of-way width, which is two (2) feet behind the back of curb, is nineteen (19) feet. A border easement, which extends from the right-of-way to back of sidewalk, of two (2) feet is required. This shall be designated on the final plat language and map. The right-of-way dedication and border easement width was determined assuming that the center of the road coincides with the center of the right-of-way. Applicant to confirm right-of-way location and width(s). Note: the building setback begins at the edge of the border easement. 12. Secondary vehicular access is required to be designed and constructed, accepted by the Development Engineering Division, and provided in accordance with the International Fire Code and the 2001 Spokane County Road and Sewer Standards adopted by the City. The applicant has proposed a secondary access through Lot 19, Block 2 of the Inverary final plat(to be renamed "Ponderosa Pointe"), pursuant to a plat alteration proposed in File No. SUB-05A- 05. The following conditions apply to the plat alteration: a. The private road shall be designed and constructed in accordance with private road standards in the 2001 Spokane County Road and Sewer Standards, the 2008 Spokane Regional Stormwater Manual, and all other federal, state and local regulations, as applicable. b. The private road shall meet all sight distance requirements, as determined using AASHTO Policy on Geometric Design and WSDOT Design Standards. Sight distance easements shall be provided across all affected lots, and all sight distance obstructions are required to be removed. The existing fence along Schafer Road is required to be completely relocated out of the sight distance triangle. c. The design shall include the following specifications: i. The total width of the access is to be 20 feet. ii. At the location where the proposed street intersects with Schafer Road, the approach is to have a 14-foot travel lane and 6-foot mountable curb section. iii. The mountable curb section and area behind it is to be designed in a way that will allow Fire District 1 to access the street from Schafer Road. iv. The 14-foot travel lane is to extend a minimum of 35 feet from the face of the curb. v. There shall be a gate on the emergency access street, located a minimum distance of 35 feet plus the gate swing from the face of curb on Schafer Road. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 25 I vi. The gate will only allow vehicles to exit the Ponderosa Pointe Plat; P rovided that, if City Engineering determines after app roval of the altered plat that daily vehicle egress from the plat to Schafer Road presents a traffic safety hazard, City Engineering may limit such egress to fire/emergency situations, vii. The gate must approved by Fire District 1, and. viii. The access street shall be signed on both sides "No Parking". d. Modifications to existing Schafer Road frontage improvements will be required: i. Stormwater facilities; and ii. Sidewalks e. The frontage improvements along Schafer Road, which were constructed as part of the final plat of Ponderosa Pointe (File No. SUB-05-05), are currently under warranty until December 10, 2009. Modifications to such improvements shall require an extended warranty period for the newly constructed/modified portions of the Schafer Road improvements. f. The fence located along Schafer Road shall be relocated behind the sight distance triangle. g. The intersection of the new private road and the existing private road (Old Schafer Lane), shall be designed and constructed in accordance with 2001 Spokane County Road and Sewer Standards, the 2008 Spokane Regional Stormwater Manual, and all other federal, state and local regulations, as applicable. h. The private road is required to be located in a private roadway easement or incorporated into Tract B of Ponderosa Pointe. i. The Ponderosa Pointe (Inverary)Homeowner's Association CC&Rs and Operations and Maintenance Manual are required to be updated to include the new private road. j. The Ponderosa Pointe plat language is required to be revised in all locations where it discusses private roads and drainage facilities, and easements to address the addition of the new private road. The revised plat language shall be reviewed and accepted by Development Engineering. k. Prior to Development Engineering signing off on the Final Plat and/or Final Certificate of Occupancy for any buildings in the final plat of Ponderosa East(File No. SUB-07-07),the approved civil and drainage plans and all other required improvements shall be constructed by the Sponsor, and then inspected and accepted by the Development Engineering Construction Inspector. No surety will be allowed for the roadway improvements. 1. Access to Schafer Road via the proposed private road shall only be allowed if the Hearing Examiner approves the preliminary plat of Ponderosa East in File No. SUB- 07-07. If the preliminary subdivision is not approved, then direct access to Schafer Road will not be allowed. 13. The final plat shall show any utility easements (i.e. telephone,power, etc.). The permittee is responsible for arranging for all necessary utility adjustments,relocations, or improvements as required for completion of the project. The developer needs to contact the purveyors of each affected utility regarding private service, utility improvement, and any relocation and adjustment costs. All rigid objects shall be located out of the clear zone. These HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 26 1 clear zone requirements can be found in the 2001 Spokane County Road and Sewer Standards, or as amended. 14. If sewer and/or water needs to be brought to the properties and to do this requires an Engineering design, copies of the approved sewer and water plans shall be submitted to Development Engineering. The civil plans for the project shall show the extents of pavement removal and replacement. 15. The internal street layout shall be coordinated with Development Engineering. Private streets shall have an"Urban Driveway-Separated Sidewalk" approach or a"Cement Concrete Approach", as applicable, where they connect to public streets. Full cul-de-sacs or hammerhead turn-arounds need to be provided at the ends of the streets. 16. The applicant is required to provide Street Name signs, Stop signs,pavement markings, and all other necessary permanent traffic control measures for all streets. The location of the signs must be called out on the civil plans. 17. Driveway approach design shall follow the 2001 Spokane County Road and Sewer Standards, or as amended. 18. A thorough search for all survey monuments shall be conducted. Any found monuments shall be referenced on the civil plans and/or final plat. 19. A landscaping plan, which shows the landscaping proposed to be placed in vegetated stormwater facilities such as channels, ditches, swales, ponds, etc., shall be submitted with the site construction plans for review. 20. A Temporary Erosion and Sedimentations Control (TESC)plan shall be prepared and submitted with the site construction plans, and shall cover all construction activities for the improvements proposed in these plans. 21. An Operations and Maintenance Manual shall be submitted with the initial submittal of final design plans for the street and/or stormwater systems. The manual shall include a discussion of the design life of the various components, recommended repair and maintenance schedules, calculated annual costs for repair and maintenance, and calculated replacement costs for each component of the systems. The manual shall specify the recommended individual monthly homeowner financial assessment to accomplish the identified maintenance and replacement tasks. 22. A Homeowners Association(HOA) shall be formed to perpetually operate and maintain the on-site private street, private driveway and associated facilities including but not limited to stormwater systems at the end of the service life of the respective components, and any other improvements that may be legally required in the future. A draft copy of the CC&Rs for the HOA shall be submitted with the drainage submittal. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 27 23. The Homeowners Association's UBI number shall be referenced on the face of the final plat. 24. All new dry wells and other injection wells must be registered with the Underground Injection Control (UIC)program at Department of Ecology prior to use and the discharge from the well(s)must comply with the ground water quality requirement(nonendangerment standard) at the top of the ground water table. Contact the UIC staff at UIC Program, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-6143 or go to: http://www.ecy.wa.gov/programs/wq/grndwtr/uic/registration/reg info.html for registration forms and further information. Copies of the registration for drywells, which receive public road stormwater runoff, are to be sent to Development Engineering. The City of Spokane Valley NPDES Permit Number is WAR04-6507. 25. A Construction Stormwater Permit shall be obtained from the Department of Ecology,if both of the following conditions apply: a. The construction project disturbs one or more acres of land (the area is the cumulative acreage of the entire project, whether in a single or in a multiphase project), and b. If there is a possibility that stormwater could run off the site during construction and into surface waters, or into conveyance systems leading to surface waters of the state. Construction site operators must apply for a permit 60 days prior to discharging stormwater. More information can be obtained from: http://wvvvv.ecy.wa.gov/programs/wq/stormwater/construction/ 26. The review of Civil plans and supporting documents cannot proceed until an application for a grading permit has been received. All documents (plans, reports, etc) must be submitted through the Building Department Permit Center located at 11703 E Sprague Avenue, Suite B-3. 27. Plans and calculations submitted for review are to be comprehensive,per Standards (e.g. sheet size) and to have gone through an independent in-house review. The Division recognizes that minor errors and omissions in the submission may occur; however, if the Division begins its review and the documents do not appear to be adequate for determining compliance with requirements, or that previous comments have not been addressed, the documents will be returned. Copies of the checklist used for review and to assess completeness will be provided upon the request of the Project Engineer. 28. Plat language will be determined at the time of final plat submittal. To obtain plat language, contact Development Engineering after civil plan approval and/or before the proposed final plat is submitted. SPOKANE COUNTY WATER DISTRICT NO. 3: 29. At the present time, one (1) public water service is available to the existing residence on site. A connection to the water main in Old Schafer Road has been stubbed out to the property, HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 28 and will need to be extended through the plat and connected to the west through a twenty (20) foot wide easement off of the west end of the proposed 37th Lane. 30. A water main will also need to be installed east from the intersection of Mercy and 37th Lanes to the end, and then south to the end of the property. The required fire flow and other factors will determine the final pipe size. 31. A water plan prepared by a licensed Engineer, and a Water Main Extension Agreement, will be required to be approved and executed by the District before construction of any water system improvements may be made. Any changes/improvements to the District's water distribution system that are a result of new construction projects are the responsibility of the property owners. SPOKANE COUNTY DIVISION OF UTILITES: 32. The final plat dedication shall state: "Public sewers shall be constructed to provide for the connection of each parcel to the County's system of sewerage. Uses on properties within the project shall be required to connect to the sewer and pay applicable charges per the County Sewer Ordinance. Sewer connection permits shall be required." 33. A Public Sanitary Sewer easement shall be shown on the face of the final plat, and the final plat dedication shall state: "The perpetual easement granted to Spokane County, its' successors and assigns is for the sole purpose of constructing, installing, operating, maintaining, repairing, altering,replacing, removing, and all other uses or purposes which are or may be related to a sewer system. Spokane County, it's successors and assigns at all times hereinafter, at their own cost and expense, may remove all crops, brush, grass or trees that may interfere with the constructing, installing, operating, maintaining, repairing, altering, replacing,removing and all other uses or purposes which are/may be related to a sewer system. The grantor(s)reserves the right to use and enjoy that property which is the subject of this easement for purposes which will not interfere with the County's full enjoyment of the rights hereby granted; provided,the Grantor(s) shall not erect or construct any building or other structure or drill on the easement, or diminish or substantially add to the ground cover over the easement. The easement described hereinabove is to and shall run with the land." 34. The applicant shall submit expressly to Spokane County Division of Utilities,under separate cover, only those plan sheets showing sewer plans and specifications for the public sewer connections and facilities for review and approval. Commercial developments shall submit historical and or estimated water usage as part of the sewer plan submittal. 35. Sewer plans acceptable to the Division of Utilities shall be submitted prior to the finalization of the project. 36. Any water service for this project shall be provided in accordance with the Coordinated Water System Plan for Spokane County, as amended. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 29 SPOKANE REGIONAL HEALTH DISTRICT: 37. The final plat shall be designed substantially as indicated on the preliminary plat of record and/or any attached sheets as noted. 38. Appropriate utility easements shall be indicated on copies of the preliminary plat of record for distribution by the Planning Department to the utility companies, City of Spokane Valley Development Engineering, and the Spokane Regional Health District. Written approval of the easements by the utility companies shall be received prior to the submittal of the final plat. 39. The sewage disposal method shall be as authorized by the Director of Utilities, Spokane County. 40. Water service shall be coordinated through the Director of Utilities, Spokane County. 41. Water service shall be by an existing public water supply when approved by the Regional Engineer(Spokane), State Department of Health. 42. Prior to filing the final plat, the sponsor shall demonstrate to the satisfaction of the Spokane Regional Health District that an adequate and potable water supply is available to each lot of the plat. 43. Prior to filing the final plat, the applicant shall present evidence that the plat lies within the recorded service area of the water system proposed to serve the plat. 44. A plan for water facilities adequate for domestic use, domestic irrigation use, and fire protection use shall be approved by the water purveyor. Said water plan must have been approved by the fire protection district and the appropriate health authorities. The health authorities, water supplier (purveyor), and the fire protection district will certify, prior to the filing of the final plat, on the face of said water plan that the plan is in conformance with their requirements and will adequately satisfy their respective needs. Said water plan and certification will be drafted on a transparency suitable for reproduction. 45. The purveyor will also certify prior to filing the final plat on a copy of said water plan that appropriate contractual arrangements have been made with the plat sponsor for construction of the water system, in accordance with the approved plan and time schedule. The time schedule will provide, in any case, for completion of the water system and inspection by the appropriate health authorities prior to application for building permits within the plat. The contractual arrangement will include a provision holding the City of Spokane Valley, the Spokane Regional Health District, and the purveyor harmless from claims by any lot purchaser refused a building permit due to failure of the plat sponsor to satisfactorily complete the approved water system. 46. A public sewer system shall be made available for the plat and individual service shall be provided to each lot prior to sale. The use of individual on-site sewage disposal systems shall not be authorized. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 30 47. The final plat dedication shall state: "A public sewer system will be made available for the plat and individual service will be provided to each lot prior to sale. Use of individual on-site sewage disposal systems shall not be authorized." 48. The final plat dedication shall state: "The use of private wells and water systems is prohibited." 49. The final plat dedication shall state: "The public water system, pursuant to the Water Plan approved by county and state health authorities, the local fire protection district, the City of Spokane Valley Building Division and water purveyor, shall be installed within this subdivision and the applicant shall provide for individual domestic water service as well as fire protection to each lot prior to sale of each lot and prior to issuance of a building permit for each lot." SPOKANE COUNTY FIRE DISTRICT NO. 1: 50. Mercy Lane shall be posted on one side as "No Parking-Fire Lane" 51. The 37th Lane and the Fire District turnaround shall be posted "No Parking-Fire Lane"on both sides. 52. One new fire hydrant shall be installed on the common lot line for Lots 17 and 18. Provide a water plan showing size of main and hydrant location. 53. A second access road will be required. An access road from Old Schafer Lane and Schafer Lane,through alteration of the final plat of Ponderosa Pointe, will meet this requirement. AVISTA UTILITIES: 54. A five (5) foot wide easement strip along the west lot lines of Lots 1-5, a ten (10) foot easement along the south lot lines of Lots 5-12, a ten (10) foot easement along the boundary line of the Union Pacific Railroad right-of-way and a ten (10) foot easement along the boundaries of all public and private roads are required. 55. The final plat dedication shall state: "Utility easements shown on the herein described plat are hereby dedicated for the use of serving utility companies for the construction, reconstruction, maintenance, protection, inspection and operation of their respective facilities, fiber optics, cable, phone, natural gas and electric. The rights granted herein shall prohibit: Encroachment of drainage swales or `208 structures' when they interfere with the utilization of these easement strips by the serving utilities; changes in- grade that alter coverage over installed facilities; installation of water meter boxes; placement of surface structures of brick, rock or masonry that interfere with the rights granted herein. The installation of street light poles is also prohibited unless installed by the serving utility company. Utility companies shall also have the right to trim or remove trees, bushes, landscaping, without compensation, when they are situated within the easement strip. This provision shall not prohibit fences or any lateral crossings of the HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 31 7 easement strips with domestic water and sewer lines. If the developer or his subcontractor should ditch beyond the limits of the platted easement strips shown hereon, the easement shall then be identified by the actual physical location of the installed utilities." QWEST: 56. A ten (10) foot dry utility easement bordering all interior roads is required. 57. Due to the remote location, the developer may have to incur additional cost to extend phone services into the plat. C. Prior to or during on-site construction the applicant or successors in interest shall: SPOKANE VALLEY COMMUNITY DEVELOPMENT-PLANNING DIVISION: 1. Upon the discovery of potential or known archaeological resources at the subject property prior to or during future on-site construction, the developer, contractor, and/or any other parties involved in construction shall immediately cease all on-site construction, shall act to protect the potential or known historical and cultural resources area from outside intrusion, and shall notify, within a maximum period of twenty-four hours from the time of discovery, the City of Spokane Valley Community Development Department of such discovery. SPOKANE VALLEY PUBLIC WORKS DEPARTMENT—DEVELOPMENT ENGINEERING DIVISION: 2. A pre-construction conference with Development Engineering is required prior to the start of construction. During this meeting, standards and submittal requirements for the Construction Certification will be given to the project engineer/inspector. 3. For construction affecting public right-of-way, fourteen(14) days prior to construction, the applicant shall securely post a sign at each ingress to the project area that is clearly visible from the right-of-way and provides project construction details. 4. Permits are required for any access to or work within the right-of-way of the Spokane Valley roadway system. A traffic control plan will be required. 5. Notice: The Regional Pavement Cut Policy may prevent or limit pavement cuts in the adjacent street(s). There is a three (3)-year moratorium on pavement cuts for newly paved streets. Please contact the City right-of-way inspector at(509) 688-0053 for further information. Old Schafer Road was paved in 2007. 6. The TESC structures (such as filter fence, silt ponds, silt traps) are to be installed prior to the start of site work and maintained throughout the duration of construction and until the site has stabilized. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 32 7. All survey monuments shall be protected during construction. Any disturbed or damaged monuments shall be replaced prior to certification/final plat and/or release of surety. 8, Construction within the proposed public streets and easements shall be performed under the direct supervision of a licensed Washington State Professional Engineer/Land Surveyor. All -work is subject to inspection by the City Engineer or by his staff. 9. Upon completion of the improvements, a Construction Certification package and record drawings are required for the improvements and shall be submitted and approved prior to releasing the performance surety or final plat approval. SPOKANE REGIONAL CLEAN AIR AGENCY: 10, Dust emissions during demolition, construction, and excavation projects must be controlled. This may require the use of water sprays, tarps, sprinklers or suspension of activity during certain weather conditions. 11. Measures must be taken to avoid the deposition of dirt and mud from unpaved surfaces onto paved surfaces. If tracking or spills occur on paved surfaces, measures must be taken immediately to clean these surfaces. 12. Debris generated as a result of this project must be disposed of by means other than burning. 13. If objectionable odors result from this project, effective control apparatus and measures must be taken to reduce odors to a minimum. 14. Special attention should be given to proper maintenance of diesel powered construction equipment to reduce the impact of diesel exhaust, a suspended carcinogen. 15. A Notice of Construction and Application for Approval is required to be submitted and approved by Spokane Clean Air prior to the construction, installation, or establishment of an air pollution source. This includes emergency generators rated at 500 hp (375 kW) or higher,natural gas heating equipment units rated at 4 MMBTU/hr or higher(input), and heating equipment units fired with other fuels (e.g. diesel) rated at 1 MMBTU/hr(input) or higher. Contact Spokane Clean Air for a Notice of Construction application. 16. A Notice of Intent must be submitted to Spokane Clean Air prior to any demolition project or asbestos project. An asbestos survey must be done by an AHERA accredited building inspector prior to the demolition or renovation of buildings to determine if asbestos-containing material is present at the site. Contact Spokane lean Air for a Notice of Intent application. 17. Spokane Clean Air strongly recommends that all traveled surfaces (i.e. ingress, egress, parking areas, access roads, etc.) be paved and kept clean to minimize dust emissions. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 33 WASHINGTON STATE DEPARTMENT OF ECOLOGY: 18. The water purveyor is responsible for ensuring that the proposed use(s) are within the limitations of its water rights. If the final plat's activities are different than the existing water right(source,purpose, the place of use, or period of use), then it is subject to approval from the Department of Ecology pursuant to Sections 90.03.380 RCW and 90.44.100 RCW. 19. Proper erosion and sediment control practices must be used on the construction site and adjacent areas to prevent upland sediments from entering surface water. Local stormwater ordinances will provide specific requirements. Also refer to Stormwater Management Manual for Eastern Washington, at: (http://www.ecy.wa.gov/programs/wq/stormwater/eastern manual/manual.html). All ground disturbed by construction activities must be stabilized. When appropriate, use native vegetation typical of the site. 20. All new dry wells and other injection wells must be registered with the Underground Injection Control program(UIC) at the Department of Ecology prior to use, and the discharge from the well(s) must comply with the ground water quality requirement (nonendangerment standard) at the top of the ground water table. Contact the UIC staff at UIC Program, Department of Ecology, P. 0 Box 47600, Olympia, WA 98504-7600, (360 470-6143 or go to http://www/ecy.wa.gov/programs/wq/grndwtr/uic/registration/reg info.html for registration forms and further information. 21. Routine inspections and maintenance of all erosion and sediment control Best Management Practices (BMPs) are recommended both during and after development of the site. 22. The operator of a construction site that disturbs one(1) acre or more of total land area, and which has or will have a discharge of stormwater to a surface water or to a storm sewer, must apply for coverage under Department of Ecology's Baseline General Permit for Stormwater Discharges Associated with Construction Activities. 23. The owners of sites where less than one (1) acre total land area will be disturbed must also apply if the construction activity is part of a larger plan of development or sale in which more than one acre will eventually be disturbed. The discharge of stormwater from such sites without a p ermit is illegal and sub j ect to enforcement action by the Department of Ecology. 24. Applications should be made at least 60 days prior to commencement of construction activities. A permit application and related documents are available online at: http://www.ecy.wa.gov/programs/wq/stormwater/construction: or by contacting the Water Quality program, Department of Ecology, P 0 Box 47600, Olympia, WA 98504-7600; (360) 407-6401. 25. The City must issue a floodplain development permit, if any of the construction is located within the Special Flood Hazard Area. HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 34 25. Any operation that would generate a waste discharge or have the potential to impact the quality of state waters, must receive specific prior authorization from the Department of Ecology as provided under Chapter 90.48 RCW, Chapter 173-216 WAC, Chapter 173-220 WAC, Chapter 173-200 and Chapter 173-201A WAC. 26. A Stormwater Pollution Prevention.Plan for the project may be required and should be developed by a qualified person(s). Erosion and sediment control measures in the plan must be implemented prior to any clear, grading, or construction. These control measures must be effective to prevent soil from being carried onto surface water by stormwater runoff. Sand, silt and soil can damage aquatic habitat and are considered pollutants. The plan must be upgraded as necessary during the construction period. 27. Proper disposal of construction debris must be in a manner that debris cannot enter the natural stormwater drainage system or cause water quality degradation of surface waters. Dumpsters and refuse collection containers shall be durable, corrosion resistant, nonabsorbent, nonleaking, and have close fitting covers. If spillage or leakage does occur, the waste shall be picked up immediately and returned to the container and the area properly cleaned. 28. It is preferable to leave existing vegetation undisturbed for both aesthetic and practical reasons. However, if it must be removed the applicant is encouraged to dispose of it at a compost facility or replant it elsewhere. 30. The applicant is encouraged to use construction products containing recycled and non- toxic materials whenever possible, to reuse and recycle all leftover construction materials, and reduce waste generated and practice "Green Building"principals in all aspects of the project. Recycling construction debris is typically less expensive than disposal. Please contact Allison Gray at(509) 329-3448 or agra-461@ecy.wa.gov for assistance. DATED this 10th day of March, 2009 CITY HEARING EXAMINER PRO TEM j /2 /7 ,yY Michae C. Dempsey, WSBA 8 35 HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 35 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to former Chapter 10.35 of the Spokane Valley Municipal Code, the decision of the Hearing Examiner on a combined application for a preliminary plat and zone reclassification is final and conclusive unless within fourteen (14) calendar days from the Examiner's written decision, a party with standing files an appeal of the decision with the City Council of the City of Spokane Valley, City Hall, 11707 E. Sprague Avenue, Suite 106, Spokane Valley,Washington. This decision was mailed by regular mail to the Applicant, and to all other parties of record, on March 10,2009. THE APPEAL CLOSING DATE IS MARCH 24,2009. The complete record in this matter, including this decision, is on file during the appeal period with the Office of the Hearing Examiner,Third Floor, Public Works Building, 1026 West Broadway Avenue, Spokane,Washington, 99260-0245; and may be inspected by contacting Leslie Busch at(509)477-7490. The file may be inspected during normal working hours, listed as Monday-Friday of each week, except holidays,between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period,the file may be inspected at the City of Spokane Valley Department of Community Development-Planning Division, 11707 E. Sprague Avenue, Spokane Valley,WA,99206; by contacting Micki Harnois at(509)921- 1000. Copies of the documents in the record will be made available at the cost set by the City of Spokane Valley. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. a.; HE Findings, Conclusions and Decision REZ-20-07/SUB-07-07 Page 36